Corps of Commissionaires (Queensland) Limited v Employees employed as Commissionaires [2001] QIRC 134 (2001) 168 QGIG 29

14 September, 2001 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 29 ########################################################################################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 156 – application to certify agreement Corps of Commissionaires (Queensland) Limited AND Employees employed as Commissionaires (No. CA344 of 2001) COMMISSIONER FISHER 30 August 2001 Application to certify agreement – Section 160(2) does not apply – Any reduction would not be against the public interest – QWAs – Certified Agreement conditions – Agreement approved – To be relisted for review in twelve months. DECISION On 13 August 2001, the Commission as currently constituted certified the Corps of Commissionaires (Queensland) Limited – Certified Agreement. In certifying the Agreement and in accordance with s. 160(4) of the Industrial Relations Act 1999 (the Act), the Commission decided that s. 160(2) of the Act did not apply because in considering the context of the employment conditions as a whole, any reduction in the employees’ entitlements would not be against the public interest. This decision expands on my reasons for making that finding. In correspondence regarding the Agreement sent by the Commandant/CEO of the organisation, Mr J. Sanders, to the Industrial Registrar, the following information was provided about the Corps of Commissionaires: “The Corps of Commissionaires operates as a “not for profit” organisation dedicated to providing support to ex-servicemen and women. Our main function is to assist our Commissionaires to obtain employment. We seek to do so by obtaining contract work. Commissionaires are disadvantaged in several ways:– • The average age is 45 years. • Many of them have either physical or emotional disability or both, which either limits the nature of the work they can do, or the amount of such work. • Many have difficulty in marketing themselves directly to industry and commerce, hence our role in employing them on our payroll. They are proud of their Service History, and loathe to become dole recipients. We also perform a welfare role to the extent that our funds allow. The Corps receives no government funding of any kind, but relies on our contract work to keep going.”, and; “The resultant pattern of assignments is one of very short jobs, usually mid week, and at short notice.”. Until the Agreement was certified, members of the Corps had their employment regulated by Queensland Workplace Agreements (QWAs). It is apparent from material tendered during the hearing for the approval of the Agreement, that the Corps had updated the QWAs from time to time to ensure that rates and conditions were maintained. The decision was made to move to a certified agreement in place of individual QWAs mainly for administrative purposes. A certified agreement would ensure all existing and future employees were covered by an industrial instrument and would avoid the need to continually file QWAs for new employees or to update the list of employees who were parties to QWAs. In addition, a certified agreement would make the terms and conditions of employment for members of the Corps more transparent. -- 1 of 2 -- 30 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 14 September, 2001 On the material before the Commission, I was satisfied that the procedures set out by s. 156 of the Act were followed in making the Agreement. The Commission was also satisfied that a valid majority of employees approved the Agreement. The matter which required careful consideration was whether the Agreement met the no disadvantage test or whether, in the context of the employment conditions as a whole, any reduction in entitlements would not be contrary to the public interest. The issues which required consideration were weekend rates and the hours of work clause. In considering the no disadvantage test, the provisions of the parent Award, the Security Industry (Contractors) Award – State needed to be examined. The Agreement provides that the Award applies except where modified or amended by the Agreement. Other than the weekend rates and hours of work, the conditions of the Agreement were comparable to the Award. The Agreement provides for a 40 hour week whereas the Award provides for 38 hours. Mr McCrystal, who appeared for the applicant, submitted that the average working week for an employee is 35 hours per week Monday to Friday. Sunday work is a rarity. It is important to note that clause 5 – Nature of Employment of the Agreement provides that: “The Commissionaire is an employee of the Corps only when undertaking an assignment for a client of the Corps and also on the payroll of the Corps for that assignment. Employment by the Corps starts when the Commissionaire commences an assignment and ceases on the expiration of the assignment . . .”. The hourly rate for day work for a Commissionaire exceeds the comparable award rate by approximately 20 cents per hour. The night rates in the Agreement and the Award are the same. The Award provides more advantageous rates for Saturday and Sunday work than the Agreement. As mentioned earlier, weekend work for Commissionaires is infrequent. The Agreement provides that the rates of pay will be increased in line with movements in the award rates and/or general rulings. Having compared the relevant award and agreement provisions it is apparent that the Agreement advantages employees over the Award in respect of day rates. The Agreement disadvantages employees in terms of the hours of work clause and weekend rates. Whether any disadvantage regarding weekend rates occurs is dependent on whether a Commissionaire is engaged to work on a Saturday or Sunday. At present that is not a common occurrence. Any Commissionaire who works on a weekend would be disadvantaged compared to the Award and that is not to be ignored. The hours of work clause would seem to be more of an “on paper” disadvantage than a real one, given the hours usually worked by Commissionaires. The Corps provides work for ex service personnel many of whom have a disability. Infirm worker rates were not sought for employees as they perceive themselves as having limitations but not infirmities. Because of these factors, the Corps needs to be competitive with providers of able bodied workers to ensure work is obtained for their employees. In accordance with s. 154 of the Act, the Registrar placed a notice in the Registry with the information required. In addition, the Registry notified the ALHMWU, the Union party to the Award, that the application to certify the Agreement had been made and it was entitled to be heard. Despite these notices the Union did not seek to be heard nor did any employer party to the Award seek to intervene (assuming intervention is permissible). The Commission can only conclude that the award parties were not concerned about the making of the Agreement, its effect on employee conditions or like providers. In light of the nature of the organisation which is the employer, the situation of the employees and the nature of the work performed, the Commission concluded that any reduction in the employees entitlements would not be against the public interest. The other requirements of the Act being satisfied, the Commission certified the Agreement operative from 13 August 2001. Because the Agreement has a life of three years and in light of the finding made regarding the public interest the Commission decided to relist this matter in twelve months time to review the operation and effect of the Agreement on employees. Order accordingly. G.K. FISHER, Commissioner. Appearances:– Mr P. McCrystal for the Corps of Commissionaires (Queensland) Limited. Released: 30 August 2001 ########################################################################################################################### -- 2 of 2 --